A party opposing summary judgment must present "significant probative supporting evidence" that a factual dispute exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In addition, Fed. P. Civ. P. 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex. 477 U.S. at 322.

The central issue in this case is whether the claimant violated any currency reporting statute which would trigger the Government's right to seize and forfeit the currency. The claimant argues that he was never required to file a CMIR because no "departure" occurred as required by applicable regulations.

Id. (1995 Supp.). This provision is dispositive of the instant motion, since it expressly permits forfeiture once the monetary instrument is delivered to a common carrier for transportation abroad. It is the conduct of the claimant in conveying the currency to the airline, rather than the transfer of the currency aboard an international flight, that is determinative of when the duty to file arises. Such an approach makes sense given that a person consigning a package for delivery by a carrier or the postal service generally has no control over the exact mode of transportation or actual flight to be utilized in conveyance.
*fn1"

The regulations promulgated by the Secretary of the Treasurer implementing 31 U.S.C. § 5316 also make clear that delivery to a common carrier triggers the requirement to file a CMIR.
*fn2"
Specifically, 31 C.F.R. § 103.23(a) requires that:

Each person who physically transports, mails, or ships, or causes to be physically transported, mailed, or shipped, or attempts to physically transport, mail or ship, or attempts to cause to be physically transported, mailed, or shipped, currency or other monetary instruments in an aggregate amount exceeding $ 10,000 at one time from the United States to any place outside the United States .... shall make a report thereof. A person is deemed to have caused such transportation, mailing or shipping when he aids, abets, counsels, commands, procures, or requests it to be done by a financial institution or any other person. (Emphasis added).

Under this regulation, the claimant is deemed to have caused the transportation, mailing or shipping of the currency once he requested American Airlines to ship the crate to Colombia. Claimant thus was required to file a CMIR on the date he dropped off the crate. Since he undisputedly did not make any filing, he violated 31 U.S.C. § 5316 and the currency is subject to forfeiture.

The claimant mistakenly relies on 31 C.F.R. § 103.27(b) in arguing he did not need to make any filing because no "departure" had occurred within the meaning of that regulation. This provision governs the time and place of filing but does not modify the filing requirements set forth in the statutes and regulation discussed above. Regulation 103.27(b)(3) generally requires that CMIRs must be filed at the port of departure "at the time of departure, mailing or shipping from the United States...." 31 C.F.R. § 103.27(b)(1) and (3). The last part of the regulation permits alternative filing by mail if the currency is not directly transported by a person:

The claimant contends that the cargo had merely been dropped off at the cargo terminal and was seized before it was placed on an international flight for "departure" as required by the regulation. However, the claimant overlooks the fact that this regulation, as well as 31 C.F.R. § 103.27(a), requires filing on the date of mailing or shipping of currency, in addition to the date of departure. See United States v. 6109 Grubb Road, 886 F.2d 618, 626 (3d Cir. 1989) ("or" explicitly placed in a statute should be given its plain meaning); Reiter v. Sonotone Corp., 442 U.S. 330, 339, 60 L. Ed. 2d 931, 99 S. Ct. 2326 (1976) (every word that Congress uses in a statute should be given effect). Here, delivery of the crate by the claimant to American Airlines for conveyance to Colombia unquestionably constitutes shipping. An air waybill had been prepared and the transportation charge of $ 213.64 paid in full. See Boeckeler Dec., Exh. 1.

Moreover, the cases cited by claimant are not relevant, since they do not involve shipping or mailing, but rather, the carrying of monetary instruments by individuals about to board an international flight.
*fn3"
Since a report must be filed at the "time of departure," 31 C.F.R. § 103.27(b)(1), the question of departure frequently arises due the practical problem of enforcing the statute if actual physical departure from the airport were required. See Rojas, 671 F.2d 159 at 163. In contrast, no uncertainty arises as to when "shipping or mailing" occurs under 31 U.S.C. § 5317(c) and 31 C.F.R. § 103.27(a), as discussed above.

Claimant's other arguments are equally unpersuasive. His contention that neither § 5316 nor § 5317 encompass violations for an attempted failure to file a report is a correct statement of law, but inapplicable here. See U.S. v. $ 500,000, 62 F.3d 59 (2d Cir. 1995); Bareno-Burgos, 739 F. Supp. at 780-81. As discussed supra, since the duty to file had arisen, the question of attempt need not be addressed.

Claimant also argues that the government did not adequately plead that claimant had the requisite knowledge and intent to violate the statute. However, the rule in the Second Circuit is that proof of actual knowledge or wilful intent to violate reporting requirements is not required in an in rem forfeiture actions. See U.S. v. $ 359,500, 828 F.2d 930, 932-34 (2d Cir. 1987); U.S. v. $ 94,000, 2 F.3d 778 (7th Cir. 1993).

CONCLUSION

Since claimant has failed to establish that he is entitled to judgment as a matter of law, summary judgment is DENIED.

A conference will be held on October 26 at 12:00 noon. Upon prior request, the parties may appear by telephone conference call arranged by the parties.

SO ORDERED.

Dated: Brooklyn, New York

October 3, 1995

MARILYN DOLAN GO

UNITED STATES MAGISTRATE JUDGE

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